IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended:
AND IN THE MATTER OF the complaints by Jean-Marc Lang August 31, 1998 and December 15, 1998 alleging discrimination in services because of ethnic origin and ancestry.
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Jean-Marc Lang
Complainant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services and Enfants en Peril (Children at Risk)
Respondents
INTERIM DECISION
Adjudicator: Steven J. Faughnan
Human Rights Tribunal of Ontario
400 University Avenue, 7th Floor
Toronto ON M7A 1T7
Phone (416) 314-0004 Fax: (416)-8743 Toll free 1-800-668-3946
TTY: (416)314-2379 / 1-800-424-1168
APPEARANCES
Ontario Human Rights Commission ) Lynne Poirier, Counsel
) Vicky Satta, Student
Jean-Marc Lang, Complainant ) Michel Lang
Her Majesty the Queen in Right of Ontario as represented )
by the Ministry of Community and Social Services, ) Robert Charney, Counsel
Respondent ) Sarah Kraicer, Counsel
Enfants en Peril (Children at Risk), Respondent ) Barbara McIsaac, Counsel
) Gregory Tzemenakis, Counsel
INTRODUCTION
1This interim decision addresses a motion brought by the Complainant Jean-Marc Lang (the “Complainant”) to amend his complaints dated August 31, 1998 and December 15, 1998 (the “Complaints”) to claim certain relief under the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). No affidavits were filed in support of or in response to the motion.
2Although all of the factual and legal submissions made by the parties may not be explicitly set out in this decision, all the factual and legal submissions of the parties were considered in determining the matters at issue herein.
DECISION
3Subject to the conditions set forth in this Decision, the Complainant is permitted to amend the Complaints in accordance with the Order that follows this Decision.
THE BACKGROUND
4In telephone conference calls held on February 23, 2001 and March 30, 2001, the dates for the exchange of pleadings, disclosure and mediation were set in this matter. Although permitted to do so, the Complainant, who was at the time represented by a law firm, did not file a Statement of Facts and Issues or a Reply under Rules 35 and 37, respectively, of the Tribunal’s Rules of Practice (the “Rules”). Only the Ontario Human Rights Commission (the “Commission”), Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services (“MCSS”) and Enfants en Peril (Children at Risk) (“EEP”) filed pleadings in this proceeding.
5As is the normal course in proceedings before the Tribunal, after the time for serving and filing pleadings under the Rules had passed and a mediation had taken place, a case management pre-hearing conference call was scheduled. Prior to the date of the conference call, the Tribunal was notified through correspondence from the Complainant’s parents dated September 10, 2001, that legal representation had been suspended. However, in the correspondence, they reserved the right to consult with the law firm and reactivate the law firm’s participation as it pertained to conflicting matters and/or a final resolution.
6The case management pre-hearing conference call proceeded on September 13, 2001. The Complainant’s parents participated in the call. At this conference call a number of important procedural matters were discussed, including a request by the Respondents for clarification of the remedies sought by the Complainant against the Respondents and related disclosure issues, some of which had been raised between the parties previously.
7After the initial conference call, the Tribunal forwarded correspondence to the parties dated September 21, 2001, confirming the matters determined on the call. The letter, amongst other things, confirmed that the Commission and the Complainant were directed to do the following:
(1) By October 12, 2001, the Commission and the Complainant were to provide to the Respondents documentation in their possession of the expenditures and other liquidated damages claimed, along with any amount for general damages and mental anguish claimed under section 41 of the Code;
(2) By October 12, 2001, the Commission and the Complainant were to advise the Respondents whether a claim will be made under section 41 of the Code, regarding the damage, if any, that arises from the Complainant’s medical condition or treatment; and
(3) If a claim is being made regarding the damage, if any, that arises from the Complainant’s medical condition or treatment, and the Respondents seek further disclosure, the Respondents may bring a motion for disclosure and production, which may include a request for the Complainant’s medical records.
8In accordance with some of the relief that was requested in a letter that the Commission had received from Mr. Lang dated September 27, 2001, by letter dated October 29, 2001, the Commission clarified its position with respect to the monetary remedies sought and the request for disclosure of related information, as follows:
La Commission revendiquera contre les intimés :
a. Une indemnisation financière pour la perte consécutive à l’attente volontaire et/ou commise avec insouciance en vertu de l’article 41 (1) (b).
b. En guise de reconnaissance de la peine et douleur causée par le contenu de la plainte JPIR-3VLK28 et NRIX-3ZYLVD, que l’intimé, le Ministère (MSSC) accorde des dommages-intérêts généraux de $10,000.00 à chacun: Jean-Marc et Philippe Lang pour perte d’être libre de discrimination et d’attention parentale n’eût été de la discrimination.
c. En guise de reconnaissance de la peine et douleur causée par le contenu de la plainte JPIR-3VLK28 et NRIX-3ZYLVD, que le MSSC accorde des dommages-intérêts généraux de $10,000 à chacun Hélèn Boisvert-Lang et Michel Lang pour perte d’être libre de discrimination et perte de consortium.
Quant aux dommages-intérêts relativement au préjudice associé à la condition médicale de la partie plaignante ou aux traitements qu’elle reçoit et la divulgation de documents s’y rapportant:
La Commission ne revendiquera pas de dommages-intérêts portant sur l’état de santé du plaignant Jean-Marc Lang. Ainsi, le dossier médical du plaignant sera divulgué que dans la mesure où il sera pertinent à la question de savoir si un service offert à l’agence EEP fut refusé au plaignant par les intimés, et dans la mesure où il sera pertinent à la question à savoir si les intimés ont accommodé le plaignant au point du préjudice indu. En d’autres mots, il ne sera plus nécessaire, à la lumière de la position de la Commission et du plaignant, d’obtenir et de divulguer une nouvelle évaluation médicale de l’état de santé du plaignant afin de déterminer quelle a été la conséquence du refus du service sur l’état de santé actuel du plaignant et/ou de déterminer ses besoins futurs en matière de traitements.
9Mr. Lang candidly admitted on the motion that the decision not to claim liquidated and general damages, if any, that arose from the alleged harm to the medical condition of the Complainant caused by the alleged denial of access to the services provided by EEP, was because those amounts could be claimed in a civil action against the Province of Ontario (the “Civil Action”). The Civil Action, in which members of the Lang family including the Complainant, number among the plaintiffs, alleges a failure of the Province of Ontario to provide adequate services for children with autism, and challenges eligibility requirements of the Preschool Autism Program offered by the Province of Ontario. The plaintiffs in the Civil Action claim both damages and declaratory relief.
10Subsequent to this letter, in response to further requests for disclosure, the Commission steadfastly maintained that material that did not relate to a claim for damages as set out in its earlier correspondence of October 29, 2001, was not relevant to the proceeding. For example, in correspondence dated November 12, 2001, after repeating excerpts from their letter dated October 29, 2001, the Commission states the following:
Comme vous pouvez sans doute le constater, la Commission ne revendique pas de dommages-intérêts liquidés, de remboursement pour dépenses encourues ni de dommages-intérêts généraux autre que ce qui est indiqué ci-haut. Par conséquent, nous ne voyons pas la pertinence de votre demande de divulgation pour des documents reliés aux dépenses et dommages liquidés. Premièrement, la Commission d’enquête a l’autorité d’accorder des dommages-intérêts généraux pour le simple fait de la violation des droits protégés en vertu du Code. Deuxièmement, quant aux dommages réclamés ci-haut, nous en ferons la preuve simplement par le témoignage des parents des plaignants. Troisièmement, la documentation reliée à l’aspect volontaire de la violation consiste en la correspondance entre les intimés et le plaignant, documentation que vous avez en votre possession.
Vous demandez également une divulgation additionnelle quant à la condition médicale du plaignant. Vous indiquez que votre position est fondée sur le fait d’avoir fourni des mesures d’adaptation raisonnables quand la demande de services en français a été présentée à l’agence, et que la condition médicale du plaignant est pertinente en ce qui à trait à la question à savoir si l’agence s’est acquittée de son devoir d’accommoder le plaignant. Si vous n’avez pas encore reçu la documentation reliée à la condition du plaignant lorsqu’il a demande des services en francais, il nous ferait un plaisir de vous la fournir. Cependant, comme nous l’avons expliqué à Me Kraicer, nous ne considérons pas la condition du plaignant après cette période comme étant pertinente à la question à savoir si les mesures d’adaptation étaient raisonnables à l’époque (emphasis in original).
11In a letter dated December 4, 2001, MCSS confirmed the Commission’s position but continued to request disclosure of information relating to the Complainant in order, as stated in the letter, for them to address the matters at issue in this proceeding. This included a request for documentation regarding therapy that he received from any agencies and of any assessment of his past and future progress. In addition, MCSS stated in the letter that based on its review of disclosure materials that had been filed in the Civil Action there were many relevant documents in the possession of the Lang family that had not been disclosed in the human rights proceeding to date.
12The Commission responded by letter dated January 18, 2002. In the letter the Commission maintained its position on the irrelevancy of the disclosure requests.
13After MCSS was directed by counsel in the Civil Action to ask the Lang family for their permission to use the documentation relating to them in the human rights proceeding; and the Tribunal forwarded correspondence to the parties inquiring as to the status of the proceeding, the Tribunal received correspondence dated February 15, 2002 from the Complainant’s parents that left no doubt as to what his position then was with respect to the disclosure request. The letter provides in part as follows:
II est nécessaire de se rappeler que la cause Lang v. Ministère des services sociaux et communautaires et Enfants en péril est basée sur le principe de discrimination envers Jean-Marc et que la cause à Toronto est tout à fait différente et ne se rapportent pas aux mêmes éléments et aux mêmes années etc. les deux causes en question n’ont en commun sinon qu’il s’agit des mêmes parents et de l’enfant autiste Jean-Marc.
Pour ces raisons, nous sommes catégoriques; toute information présentée dans le cadre de la cause Wynberg ne peut pas être divulguée, admise ou déposée dans la cause de la Commission comme documentation en preuve dans le cas de Lang v. Ministère des Services sociaux et communautaires et al.
Nous n’accordons pas notre consentement à ce que la documentation en preuve obtenue par le procureur général (Kraicer/Charney) soit admise dans le recours devant la Commission, ce sont deux démarches très distinctes pour lesquelles les questions en litige diffèrent complètement.
Il nous est permis d’assumer que tout ceci peut aussi être une tactique visant a retarder l’Enquête de la Commission et comme nous vous l’avons communiqué à plusieurs reprises, nous souhaitons que le cas devant la Commission procède sans plus de délais.
14As the matter had hearing dates set to begin on February 3, 2003, a further case management pre-hearing conference call was scheduled for January 28, 2003. On that date the Tribunal made an oral ruling based on written submissions filed by the parties, regarding the scope of the Complaints in this matter. The ruling provided as follows:
ISSUE
This interim decision addresses the scope of the Complaints by Jean-Marc Lang dated August 31, 1998 and December 15, 1998, respectively, alleging discrimination in services because of ethnic origin and ancestry (the “Complaints”), notably the time frame to which the Complaints apply.
This interim decision is based on the written submissions filed, and a review of the Complaints and Pleadings.
DECISION
At this stage of the proceedings the Tribunal must be cautious not to define the scope of the Complaints too restrictively, as this decision is being made in the absence of a full evidentiary record. On occasion, the evidence led at a hearing may require a revisiting of the previously defined scope of a complaint.
Because, as set out in section 39(1)(a) of the Code, the Tribunal holds a hearing to determine whether a right of the Complainant under the Code has been infringed, from a review of the materials before me, what prompted the Complaints and their real subject matter was the alleged inability of the Complainant, a nursery school age Francophone autistic child, to access the same services as provided by Enfants en Peril (Children at Risk) to nursery school age Anglophone autistic children. This involves consideration of whether the Complainant was denied access to the services provided by Enfants en Peril (Children at Risk), particularly the Thursday’s Child Nursery School (“TCNS”), whether the Ministry of Community and Social Services (“MCSS”) discriminated against the Complainant in allegedly failing to provide the services, and whether the Complainant was accommodated up to the point of undue hardship.
In the absence of further particulars of the programs and services, other than the TCNS and the Communication Development Program, that the Complainant alleges were offered by Enfants en Peril (Children at Risk), the time frame for which they are claimed and how they fall within the subject matter of the Complaints, I am not prepared at this time to make a determination about that aspect of the Complainant’s submission.
Although the Complaints refer to June 19, 1998, as being the date that the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) was contravened, for the purposes of determining liability under the Code, the proper time frame of these Complaints begins with the request for services for Jean-Marc Lang, continues through the time period of the alleged denial and ends when the Complainant was accommodated or no longer eligible for the services because of his age, or because of an earlier intervening event, such as proof that he was no longer seeking accommodation or he was otherwise no longer eligible for the service.
To extend the time frame as requested by the Complainant would be embarking upon an investigation of the accessibility to services by a Francophone autistic person after nursery school age and onward. This is not within the subject matter of the Complaints.
That being said, this does not preclude any party from attempting to introduce evidence after the time frame set out above which is relevant to remedy.
15After the January 28, 2003 ruling, Mr. Lang advised the Tribunal that based on legal advice that he received the day before from counsel in the Civil Action, he was intending to bring a motion to amend the remedies sought by increasing the claim for general damages to $100,000.00, and to claim liquidated damages for past expenses incurred. The Tribunal directed that a motion be brought on notice that clearly set out the relief requested. The Notice of Motion that the Complainant filed requests the following relief:
Le plaignant demande de modifier sa position en ce qui concerne les dommages intérêts moraux et généraux, qui furent identifiés dans la plaidoirie (en vertu de l’article 35) déposée par la Commission Ontarienne des droits de la personne en date du 23 mars 2001, la réplique (en vertu de l’article 37) déposée par la Commission Ontarienne des droits de la personne en date du 25 avril 2001 et la position déposée par la Commission Ontarienne des droits de la personne en date du 29 octobre 2001, concernant les dommages-intérêts généraux et moraux qui furent identifiés, suivant l’ordonnance du tribunal en date du 21 septembre 2001.
La position du plaignant qui est envisagée en matière de dommages est la suivante :
a. Dommages moraux : une ordonnance enjoignant les intimés, le Ministère (MSSC) et/ou Enfants en Péril (EEP), conjointement et/ou subsidiairement, en vertu de l’article 41 (1) (b) du Code, d’effectuer une compensation monétaire pour souffrance morale n’excédant pas $10,000.00 pour la perte consécutive à l’atteinte volontaire et/ou commise avec insouciance;
b. Dommages généraux: En guise de reconnaissance de la peine et douleur causée par le contenu de la plainte JPIR-3VLK28 et NRIX-3ZYLVD, que l’intimé, le Ministère (MSSC) et/ou Enfants en Peril (EEP), conjointement et/ou subsidiairement, accordent des dommages généraux de $100,000.00 à Jean-Marc Lang pour perte d’être libre de discrimination, d’attention parentale n’eût été de la discrimination et du manque de services nécessaires à sa santé médicale et mentale.
c. Dommages généraux: En guise de reconnaissance de la peine et douleur causée par le contenu de la plainte JPIR-3VLK28 et NRIX-3ZYLVD, que l’intimé, le Ministère (MSSC) et/ou Enfants en Péril (EEP), conjointement et/ou subsidiairement, accordent des dommages généraux de $10,000.00 à Philippe Lang (comme partie directement affectée) pour perte d’attention parentale et éducative, n’eût été de la discrimination;
d. Dommages généraux : En guise de reconnaissance de la peine et douleur causée par le contenu de la plainte JPIR-3VLK28 et NRIX-3ZYLVD, que l’intimé, le Ministère (MSSC) et/ou Enfants en Péril (EEP), conjointement et/ou subsidiairement, accordent des dommages généraux de $10,000.00 à chacun Hélène Boisvert-Lang et Michel Lang (comme partie directement affecté) pour perte d’être libre de discrimination et de consortium, vue la responsabilité parentale et légale envers l’enfant.
e. Dommages généraux : Une ordonnance enjoignant les intimés, conjointement et/ou subsidiairement, d’effectuer une compensation monétaire de $16,880.00, somme que le plaignant a encourue en frais juridiques;
f. Dommages généraux : Une ordonnance enjoignant les intimés, conjointement et/ou subsidiairement, d’effectuer une compensation monétaire de $ 38,058.99 en ce qui concerne les dommages liquidés, c’est à dire dépenses antérieures reliées à la thérapie;
h. Intérêts : Les intérêts antérieurs sur les sommes accordés pour dommages généraux et dommages moraux en vertu de l’article 41 (1) (b) du Code.
Prejudice
The Complainant’s Position
16The bulk of the submissions on the motion were directed to the proposed amendments for general and liquidated damages for the alleged harm to the medical condition of the Complainant, caused by the alleged denial of access to the services at issue in this proceeding.
17Mr. Lang stated that it was not the Complainant’s intention to claim these damages in this matter before the telephone call with counsel in the Civil Action. This was because the amounts would be claimed in the Civil Action. His position changed after the receipt of legal advice during that telephone call.
18He acknowledges that there can be no double recovery of the amounts claimed as damages. He advises the Tribunal that during that telephone call he confirmed with counsel in the Civil Action that the amounts claimed here are not being claimed in the Civil Action.
19Mr. Lang submits that he is not a lawyer, has two children with special needs and a busy job and he is doing the best that he can. He submits that the amendment requests are made in good faith and will cause no prejudice to the Respondents or the Commission. It took a good number of years before this matter was referred to the Tribunal and Mr. Lang submits that a delay for a few months would not make a great difference. He submits that it is too late for the Complainant to use the service anyway because of his age. Furthermore, no witnesses have begun to testify and MCSS is already in possession of numerous documents, including the documents from the Civil Action.
20The Complainant acknowledges the obligation to provide documentation in support of the claims to the Respondents and Mr. Lang is currently assembling those materials. He also acknowledges that the Respondents and the Commission may need more time to prepare if the amendments are permitted and would consent to an adjournment for that purpose. In this way he is only prejudicing himself, Mr. Lang says, because he had always insisted that the matter proceed expeditiously and now his request will likely cause delay.
21Finally, in response to the submissions of MCSS with respect to establishing or challenging the nexus between the lack of access to treatment and its effect on the Complainant, Mr. Lang submits that the same challenges are present in the Civil Action.
The Position of MCSS
22MCSS submits that the Complainant ought not to be entitled to an amendment that would delay and extend the hearing and require investigation of factual matters that took place six years ago and were abandoned one and a half years ago. For MCSS the following conduct of the Complainant militates against allowing the amendments: the availability of legal advice (whether through original counsel or counsel in the Civil Action), the deliberate strategic decision not to pursue the remedies now requested for damages arising from the medical effect on the Complainant arising from the alleged breach of the Code, the refusal to provide disclosure (in particular on medical issues) and the ability to pursue a remedy for damages in the Civil Action which the Complainant had initially chosen to do (MCSS submits that the statement of claim in the Civil Action, has not been amended to remove the claims for general and liquidated damages made in that proceeding), all militate against granting the requested amendments. The Respondents have relied on the positions taken by the Commission and the Complainant and are entitled to have done so.
23With respect to the prejudice that allowing the amendments would cause, MCSS submits that these are complex evidentiary claims that would be difficult to assess and would require expert evidence. To consider the general damages claim, the Tribunal would have to determine what the Complainant’s condition would be had he utilized the services and compare that to his condition having not received those services. But the complicating factor is that he received other services during that time and has received services since then.
24MCSS submits that to establish the liquidated damages claim it is necessary to determine what expenses were paid that would not have had to be paid if access was provided. This would involve comparing the service to that which was paid for the Complainant (being a home based program - a program that MCSS submits is different in nature) and deducting the funds that the Lang family actually received from the MCSS during this period of time to provide the home based program. MCSS submits that it will be difficult to verify the expenses after this passage of time.
25MCSS further submits that because the required information, which MCSS had requested and was refused, is now dated, and the claim relating to these damages was waived, the window of opportunity to perform an assessment of the interaction of the various therapies treatments is gone. They submit this puts the Respondents in an impossible position. MCSS submits that it is unfair to revive this claim and require the Respondents to construct a defense medical position to respond to these allegations.
26Finally, MCSS submits that if the amendments are allowed this will require additional disclosure and investigation of factual matters that will delay the hearing, and ultimately render it longer and more complex.
27MCSS therefore submits that allowing the amendments would cause actual prejudice and that it is inappropriate to permit the amendments at this time.
The Position of EEP
28EEP adopted the submissions of MCSS with respect to the amendments but added that because EEP is a non-profit organization that relies completely on private funds for fund raising, the issue of prejudice figures greatly for them. EEP now no longer offers the Thursday’s Child Nursery School program and since the Complaints were filed EEP has been living under a “cloud of discrimination”, a serious issue for an organization that relies on fundraising. Thus to allow the amendments is extremely prejudicial to EEP and contrary to the public interest in dealing with claims of discrimination, particularly since the claims arising from the Complainant’s medical condition were expressly raised and expressly abandoned.
The Commission’s Position
29The Commission submits the amendments should not be permitted, because the relief the Complainant now claims was abandoned. That being said, while the Commission agrees with MCSS’s submissions, the Commission is not completely in agreement with MCSS with respect to prejudice for the delay. According to the Commission it would be dangerous to assert, as MCSS does, that the efforts of the Complainant’s family to remedy the lack of service now causes prejudice because it has an effect on the ability on the Respondents to establish causality. That could penalize the family of the Complainant for making efforts to mitigate the Complainant’s damages. The Commission agrees that to establish causality will be difficult but does not go as far to say it is impossible. The Commission submits that any possible prejudice relating to delay that arises from the amendments could possibly be cured by an adjournment.
The Law
30MCSS relies on the decisions of Vice-Chair McKellar in Musty v. Meridian Magnesium Products Ltd. (No. 3) (1998), 1998 CanLII 29886 (ON HRT), 35 C.H.R.R. D/237 (Ont. Bd.Inq.) (“Musty”) and Odell v. Toronto Transit Comm. (No. 1) (2001), 2001 CanLII 26210 (ON HRT), 39 C.H.R.R. D/200 (Ont. Bd. Inq) (“Odell”) and submits that the Tribunal is exercising its discretion in deciding whether or not to allow an amendment. With respect to how that discretion is to be exercised, at paragraph 19 of Odell Vice-Chair McKellar stated the following:
The factors influencing how that discretion will be exercised include the following:
Whether the amendment would occasion actual prejudice to the other party;
Fairness;
The conduct of the party seeking the amendment;
The impact of the proposed amendment on the course of the hearing and any other parties.
31In Musty, Vice-Chair McKellar made the following additional commentary with respect to the exercise of the jurisdiction to amend:
58The Board has the jurisdiction to amend a complaint. That jurisdiction is exercised having regard to all of the circumstances. Whether to allow an amendment is thus a discretionary decision. In exercising this discretion, Boards have considered whether a proposed amendment, which often involves the assertion of a new ground of contravention, arises out of the same factual allegations as the original complaint, and whether raising it for the first time at the hearing would prejudice the respondents…
And after referring to previous decisions of the Board at paragraph 59 of the decision continued:
…The proposition that emerges is that complaints may be amended where the amendment does not expand the scope of the factual inquiry, but merely cites new grounds on which liability might be founded. The underlying principle behind the proposition is that there can be no prejudice or surprise to respondents in such circumstances.
60Even where the amendment sought involves the introduction of new factual circumstances, Boards have nevertheless permitted them so long as there is no prejudice to respondents, there is no violation of natural justice, and there is an opportunity to respond. See Joe, supra (at para. 102 [D/485]) and Entrop (No. 5), supra (at paras. 26 and 27 [D/195–D/196]).
32My review of Odell and Musty and the cases referred to therein establishes that the issue of fairness and the potential prejudice that arises out of a proposed amendment figures prominently in the Tribunal’s exercise of its discretion.
33With respect to establishing prejudice the panel in Odell stated the following:
20The respondent asserted that the Odell allegations would prejudice it, but did not lead any evidence of actual prejudice. There is no doubt that to enquire into the allegations would broaden the scope of the hearing considerably, would lengthen the proceedings, and might necessitate the calling of expert evidence on, for example, how the delivery of transportation services through a separate and exclusive system is experienced by its disabled passengers. This significant alteration in the scope of the case would come, of course, on the eve of the hearing. In the absence of evidence, however, all of the above falls short of establishing actual prejudice to the respondents that could not be cured by an adjournment. There is, thus, no evidence of actual prejudice that would militate against allowing Odell's complaint to be amended to include her additional allegations.
Analysis AND DETERMINATION
34The reversal of the strategic decision not to pursue some of the remedies now sought at the Tribunal and the Complainant’s refusal to disclose looms large in this analysis. While a somewhat sophisticated litigant, Mr. Lang is not a lawyer and the Complainant does not have a lawyer representing him in this complex and somewhat novel case. As the permitted amendments arise out of the same facts that gave rise to the original complaints, and considering that Mr. Lang is not a lawyer (which explains some of the actions that have been taken in this matter and the manner in which matters have recently unfolded) whether the issue is cast as one of fairness, delay, abuse of process, prejudice, failure to disclose, abandonment or waiver, the core question remains the same: would the Respondents suffer actual prejudice of sufficient magnitude if the amendments are allowed that it could not be cured by an adjournment. In my opinion the Respondents have failed to lead sufficient evidence to establish that element. There is no doubt that to enquire into the allegations would lengthen the proceedings, and might necessitate the calling of expert evidence, but in the absence of clear evidence that the analysis that the Respondents assert should be undertaken can not now be done with the appropriate disclosure being provided, I am not satisfied that they have established that by allowing the permitted amendments that the Respondents would suffer actual prejudice of sufficient magnitude that it could not be cured by an adjournment.
The Amendments Sought
35Having dealt with the issues relating to prejudice, I now turn to other submissions made on the specific remedies sought. As the first and last proposed amendments were not opposed, and the Tribunal has no concerns about them, they are granted. The balance of the proposed amendments will be dealt with in the order set out in the Notice of Motion.
Dommages généraux: En guise de reconnaissance de la peine et douleur causée par le contenu de la plainte JPIR-3VLK28 et NRIX-3ZYLVD, que l’intimé, le Ministère (MSSC) et/ou Enfants en Peril (EEP), conjointement et/ou subsidiairement, accordent des dommages généraux de $100,000.00 à Jean-Marc Lang pour perte d’être libre de discrimination, d’attention parentale n’eût été de la discrimination et du manque de services nécessaires à sa santé médicale et mentale.
The Complainant’s Position
36With respect to the increase in the amount of general damages claimed, Mr. Lang submits that he did not fully understand the distinction between general and liquidated damages, that he thought that general damages were limited to the sum of $10,000.00, and moreover, that he was under the impression that only a claim for liquidated damages could exceed the sum of $10,000.00. The Complainant relied on Shelter Corp. v. Ontario (Human Rights Comm.) (2001), 2001 CanLII 28414 (ON SCDC), 39 C.H.R.R. D/111 (Ont. Sup. Ct.) (“Shelter Corp.”) to support his submission that there is no cap on general damages.
The Position of the Other Parties
37MCSS does not dispute the Tribunal’s jurisdiction to award general damages in excess of $10,000.00 but asserts that, it has not been provided with any authority nor has it found any authority in which failure to access a service has caused a medical loss that the Tribunal has compensated for in general damages. This raises two questions: whether loss arising out of the infringement extends so far as to include a loss of that nature, which MCSS alleges is indirect and remote and; whether an award can be made, not for the experience of discrimination, but for damages in Tort of the kind that is seen in a medical malpractice claim.
38EEP adopted the submissions of MCSS on this point. The Commission agreed with the submissions of MCSS on this point, and also took no issue with the amount claimed.
Analysis and Determination
39There was a paucity of argument or legal authority presented by the parties on this important issue.
40In Lampman v. Photoflair Ltd. (1992), 1992 CanLII 14284 (ON HRT), 18 C.H.R.R. D/196 (Ont. Bd. Inq.) (“Lampman”), a case where the complainant alleged sexual harassment, the (then) Board of Inquiry discussed the ruling of the Ontario Divisional Court in York Condominium Corp. No. 216 v. Dudnik (1991), 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406 (“Dudnik”). In Lampman the panel wrestled with, but ultimately avoided deciding the issue of what can be claimed as general damages in the first branch of section 41(1)(b) of the Code. Some of the analysis of the panel in Lampman illustrates the inherent difficulty in resolving the issue. After reviewing a number of authorities and undertaking a detailed analysis of the decision of the Divisional Court in Dudnik (at paragraphs 74 to 80 of Lampman) the panel came to the following conclusion:
81In summary, then, there appear to be two propositions adopted by the Divisional Court in the York Condominium case, supra, that are of potential relevance in the present context. First, the Court appears to accept that general damages of the Cameron, supra, type awarded for “loss arising out of the infringement” is appropriate. Secondly, the Court took the position that general damages for “stress” can only be awarded under s. 40(1)(b) where the misconduct in question is “wilful” or “reckless” in the requisite sense. The question which appears to remain at large, however, is whether there is any room, under the first branch of s. 40(1)(b), for other types of general damages. That is to say, the Court in York Condominium did not explicitly state that the only type of general damages that can be awarded under the first branch of s. 40(1)(b) are for the “intrinsic value” of the infringement of the right. Thus, it may be asked whether there are some types of injuries to dignity or self-respect, for example, that might not constitute “mental anguish” for the purposes of the second branch of s. 40(1)(b) and might therefore sound [sic] in general damages under the first branch of the sub-section. It might well be that the correct interpretation of the general thrust of the reasoning in the York Condominium case is that the Court would be unsympathetic to the notion that there are categories of what might be referred to as psychic injuries that are not covered by the second branch of the sub-section and therefore can be the subject of unlimited awards of general damages under the first branch. If “stress” is to be included within “mental anxiety,” as the Court held, would other types of psychic injury not likely be included as well? Nonetheless, it is also true to say that this issue was not squarely raised before the Court in York Condominium and was not the subject of an explicit pronouncement.
82This apparent gap in the analysis provided by the reasoning in York Condominium is relevant to the present dispute in the following manner. Counsel for the Commission indicated in her letter that the claim for general damages brought in the present case rests on the first branch of s. 40(1)(b). Thus, it is not a claim for compensation for “mental anguish” under the second branch. At the same time, it was apparent from the submissions of co-counsel at the conclusion of a hearing concerning this matter, that the claim for general damages was not simply one for the “intrinsic value” of the “loss arising out of the infringement.” Indeed, it appeared from the submissions made at the hearing that the claim for general damages included some consideration of psychological injury. Thus, the three previous decisions of Boards of Inquiry relied upon, which were referred to above, were all cases in which general damages were awarded for “mental anguish.” Further, reliance was placed on the following list of factors said to be relevant to the assessing of general damages by Professor Cumming in Torres v. Royalty Kitchenware Ltd. (1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858 (Ont. Bd.Inq.) at p. D/873 [para. 7785]:
(i) The nature of the harassment, that is, was it simply verbal or was it physical as well?
(ii) The degree of aggressiveness and physical contact in the harassment;
(iii) The ongoing nature, that is, the time period of the harassment;
(iv) The frequency of the harassment;
(v) The age of the victim;
(vi) The vulnerability of the victim; and
(vii) The psychological impact of the harassment upon the victim.
It was suggested that to some extent at least, all of these factors were present in the circumstances of the present case. A number of these factors evidently refer to aspects of psychological injury and, indeed, might be considered to be relevant to a determination as to whether or not “mental anguish” has occurred. Thus, it would appear that, to some extent at least, the claim for general damages brought in the present case falls into the “gap” in the reasoning in the York Condominium case, supra.
83The previous decisions of Boards of Inquiry relied on in the submissions of co-counsel do not serve to fill in this gap. The Torres case, supra, was decided on the basis of an earlier version of the Code which did not contain a provision of the kind now set forth in s. 40(1)(b). It is not surprising, therefore, that the Board in Torres does not attempt to draw a distinction between “mental anguish” on the one hand and other kinds of psychological injuries on the other. The decisions in Noffke v. McClaskin Hot House and Cuff v. Gypsy Restaurant, referred to above, are cases in which general damages were awarded under the second branch of s. 40(1)(b). This can also be said of the third case relied on by co-counsel, Shaw v. Levac Supply Ltd., referred to above, though it is also true that in that case Professor Hubbard stated, at p. D/61 [para. 194], that “Awards of general damages for infringements of the Code reflect not only the mental anguish which wilful or reckless conduct may cause, but elements of pain and suffering and the injury to the complainant's dignity and self-respect as well.” Professor Hubbard then went on to rely on the list of factors set out in the Torres case. Thus it would appear to be Professor Hubbard's view that there exist a types [sic] of mental “pain and suffering” which are not embraced by the concept of “mental anguish” and which, presumably, can therefore be the subject of a special damages award under the first branch of s. 40(1)(b).
84A similar view was taken by Professor Cumming in the Cameron case, referred to above, where he suggested that general damages of various kinds, as under the Torres line of authority, were available, formerly under the old Code and now under the first branch of the new s. 40(1)(b) and that the second branch of 40(1)(b) provides for what are “in effect, punitive damages” (at p. D/2199 [para. 18548]). Thus, there is some support in these two decisions for the notion that general damages for some types of mental injury (other than mental anxiety and stress) are available under the first branch of s. 40(1)(b). On the other hand, of course, neither Professor Cumming nor Professor Hubbard had enjoyed an opportunity to read the later decision of the Divisional Court in the York Condominium case, supra. Certainly, Professor Cumming's characterization of the second branch of 40(1)(b) as one which permits the awarding of punitive damages is inconsistent with the views expressed by the Court in the York Condominium decision. Further, though the point is obviously not free from difficulty, it is not at all obvious that Professor Hubbard's views on this point are consistent with the position taken by the Court that compensation for “stress” can occur only under the second branch of s. 40(1)(b).
41Although undertaking the analysis, the panel ultimately declined to resolve that difficulty in that case.
42Recently the Divisional Court in Shelter Corp. had the occasion to address general damages under the first branch of 41(1)(b) of the Code. As set out in the decision, the submission of the respondents’ counsel in that case was that the Board of Inquiry had no jurisdiction to award general damages to the complainants because there was no evidence that any one of them suffered "mental anguish". In addressing this submission the Divisional Court found that:
43In my view, a Board of Inquiry is entitled to award non-pecuniary intangible damages arising out of the infringement of the Code. It is an award to compensate for the intrinsic value of the infringement of the complainants' rights under the Code; it is compensation for the loss of the right to be free from discrimination and the experience of victimization. There is no ceiling on the amount of general damages.
43In support of this holding the Divisional Court relied on the Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (No.5) (1996), 28 C.H.R.R. D/267 (Ont. Bd. Inq.) (“Naraine”) decision, but there is no in-depth analysis of the foundation for its conclusion nor a determination that other types of tort damages for “loss arising out of the infringement” can not be awarded.
44After the release of Shelter Corp. two Board decisions contained commentary that touched on the scope of a general damage award in the first branch of section 41(1)(b). In Fuller v. Daoud (2001), 2001 CanLII 26227 (ON HRT), 40 C.H.R.R. D/306 (Ont. Bd. Inq.), Vice-Chair DeGuire undertook a detailed analysis of subsection 41(1)(b) and, as set out in the decision, appeared to give the first branch of subsection 41(1)(b) a fairly wide remedial scope. Focussing on the definition of the word “restitution” in that subsection she set out the following:
64The overarching power conferred on the Board by subsection 41(1)(b) is to order a respondent to make restitution. It is apposite to note that monetary compensation for loss arising out of the infringement is just one of a panoply of restitutive remedies under that broad power. Restitution is an equitable remedy. That restitutive power allows the Board to restore a complainant to her or his original position before the loss or injury occurred; or to place a complainant in the position he or she would have been in, if the breach had not occurred. Restitution includes the act of restoration including restoring anything to its rightful owner; the act of making good or giving the equivalent for any loss, damage or injury one sustains; or indemnification. Restitution may take on different forms depending on the nature and legal context of the breach (see Black's Law Dictionary, 6th ed.).
45After reviewing various decisions that dealt with whether a general damage award under the first branch of subsection 41(1)(b) is capped in amount or is to be made to compensate for a single or a multiple infringement of rights under the Code, Vice-Chair DeGuire made the following comments:
69With much respect, the plain reading of subsection 41(1)(b) does not support any of the above interpretations, or any of the approaches adopted in the assessment of monetary compensation for injury or loss that arises out of the infringement of the right: nor mental anguish. As noted above, subsection 41(1)(b) confers authority on the Board to award various forms of restitutive remedies, including monetary compensation, and the discretion to add on top of the monetary compensation it deems appropriate, a sum, not exceeding $10,000, for mental anguish, only if the Board finds that the respondent had engaged in willful or reckless behaviour during the infringement of the right.
70By necessary implication, except for mental anguish, subsection 41(1)(b) does not impose an upper limit on the monetary compensation the Board may order. That view was enunciated in Naraine, supra. Moreover, recently, the Divisional Court has followed that ruling and has held that "non-pecuniary intangible damages arising out of the infringement of the Code ... to compensate for the intrinsic value of the infringement of the complainants' rights ... [are] compensation for the loss of the right to be free from discrimination and the experience of victimization. There is no ceiling on the amount of general damages" (see Ontario (Human Rights Commission) v. Shelter Corp., 2001 CanLII 28414 (ON SCDC), [2001] O.J. No. 297 (QL) [reported 39 C.H.R.R. D/111] (Sup.Ct.). The Ontario Court of Appeal denied leave to appeal. It is apposite to note that the phrase "loss arising out of the infringement" includes components analogous to pain and suffering arising from tortuous acts in the tort/civil law context.
71By the plain reading of subsection 41(1)(b), viz.: "and, where the infringement has been engaged in willfully or recklessly, a monetary compensation may include an award, not exceeding $10,000, for mental anguish", implicitly, there is a presumption that a complainant could suffer mental anguish if the respondent's conduct is willful or reckless or both. And, it is clear that only one award for mental anguish is authorized.
72Interpreting subsection 41(1)(b) to impose a limit of $10,000 would put that subsection at odds with subsection 15(1) of the Canadian Charter of Rights and Freedoms3 ("Charter"). This is a crucial phenomenon in the context of human rights and constitutional rights because of the principles of equality enshrined in s. 15 of the Charter and the doctrine of exclusivity which governs human rights forum in Canada (see Bhadauria v. Seneca College of Applied Arts and Technology (Board of Governors), 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181 [2 C.H.R.R. D/468]. For essentially, such an interpretative approach subjects anyone who seeks to assert her or his human rights via this exclusive forum to different treatment before and under the law and may not have equal protection and equal benefit of the law. Essentially, that is because a complainant who suffers from other types of wrongful conduct has resort to the civil justice system where, for example, the ceiling on general damages is much higher than $10,000 ( see Andrews v. Grand and Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229; Thorton v. Prince George (Bd. of Ed.), 1978 CanLII 12 (SCC), [1978] 2 S.C.R. 267; and Arnold v. Teno, 1978 CanLII 2 (SCC), [1978] 2 S.C.R. 287 – (the "Trilogy")). Moreover, the courts have enunciated that the interpretation of human rights legislation must be consistent with the Charter. And, the interpretation of s. 15 of the Charter should inform the interpretation of human rights legislation across Canada (Québec (Commission des droits de la personne et des droits de la jeunesse) c. Montreal (Ville), 2000 SCC 27, [2000] 1 S.C.R. 665 [37 C.H.R.R. D/271]; British Columbia (Public Services Employee Relations Commission) v. B.C.G.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 [35 C.H.R.R. D/257]; and Entrop v. Imperial Oil Ltd., 2000 CanLII 16800 (ON CA), [2000] O.J. No. 2689 (QL), (2000), 2 C.C.E.L. (3d) 19 [37 C.H.R.R. D/481] (C.A.)).
73The interpretation of subsection 41(1)(b) in Naraine, supra, and Shelter Corp., supra, are salutary. First, it put to rest the notion of different treatment of a human rights complainant and a complainant of other types of wrongful conduct. Second, it facilitates the filing of a complaint on multiple grounds and allows the adjudicator to consider the impact of the combination of those grounds on the complainant or to determine whether a complainant indeed sustained more than one distinct injury or loss as a result of the infringement. Third, it facilitates a global approach to the assessment of quantum of damages and forecloses the approach of awarding damages for each separate head of liability where the respondent's conduct violates more than one section of the Code. Fourth, and as noted above, it makes clear that only $10,000 may be awarded to a complainant for mental anguish regardless of the number of rights that have been infringed or the number of distinct injuries or losses the complainant sustained. Guided by those principles, the Board now turns to determine the appropriate monetary compensation for the loss arising out of the infringement.
46In contrast to the wide ambit to the first branch of subsection 41(1)(b) discussed by Vice-Chair DeGuire, is the analysis of subsection 41(1)(b) contained in Kearsley v. St. Catharines (City) (2002), 2002 CanLII 46502 (ON HRT), 42 C.H.R.R. D/304 (Ont. Bd. Inq.) (“Kearsley”). This was a decision rendered by the Honourable Dennis O’Leary, while sitting as a member of the Tribunal. In Kearsley, he states:
54The words in s. 41(1)(b) "direct the party to make restitution, including monetary compensation, for loss arising out of the infringement" suggest to me that the Board of Inquiry is only empowered by those words to order restitution in the amount of the monetary loss suffered because of the infringement, that is to say, the special damages suffered because of the infringement. Were it not for the decision of the Divisional Court in the Shelter Corp. v. Ontario (Human Rights Comm.) (2001), 2001 CanLII 28414 (ON SCDC), 39 C.H.R.R. D/111, I would not have thought that those words permit as well an award of general damages, being inclined to the view that when the legislature intended to provide for an award for mental suffering, it spelled it out, but limited the award to "$10,000" for "mental anguish" where the respondent has been wilful or reckless, making it unlikely the legislature intended to provide for an award of unlimited general damages for lesser mental suffering when the respondent has been only negligent.
47In my view the authorities above demonstrate that the scope of the nature of a general damage award under subsection 41(1)(b), may turn on the definition that one adopts for the meaning of the word “restitution” in that subsection. If, as the Supreme Court of Canada directs we are to give the Code a “large and liberal interpretation and one which advances the broad purposes set out in its preamble” it may be that subsection 41(1)(b) has a broader scope that that suggested by the Respondents. At the same time, there are many Board and Tribunal decisions that award general damages simply for the type of loss discussed by the Divisional Court in the Shelter Corp. However, just because a claim is novel does not mean that it is untenable. In the absence of complete submissions and evidence, I am not inclined to make a final determination on this issue at this time. In all the circumstances then, I will allow the Complainant to amend the Complaints to include the amendment as pleaded. I expect that in the course of the hearing on the merits, the parties will make further and more complete submissions on the issues that are raised by this amendment.
Dommages généraux: En guise de reconnaissance de la peine et douleur causée par le contenu de la plainte JPIR-3VLK28 et NRIX-3ZYLVD, que l’intimé, le Ministère (MSSC) et/ou Enfants en Péril (EEP), conjointement et/ou subsidiairement, accordent des dommages généraux de $10,000.00 à Philippe Lang (comme partie directement affectée) pour perte d’attention parentale et éducative, n’eût été de la discrimination;
Dommages généraux : En guise de reconnaissance de la peine et douleur causée par le contenu de la plainte JPIR-3VLK28 et NRIX-3ZYLVD, que l’intimé, le Ministère (MSSC) et/ou Enfants en Péril (EEP), conjointement et/ou subsidiairement, accordent des dommages généraux de $10,000.00 à chacun Hélène Boisvert-Lang et Michel Lang (comme partie directement affecté) pour perte d’être libre de discrimination et de consortium, vue la responsabilité parentale et légale envers l’enfant.
The Positions of the Parties and Determination
48These claims were first set out in the Commission’s letter dated October 29, 2001. Although MCSS and EEP disputed the jurisdiction of the Tribunal to award these damages, they submitted that these were not new claims and that they could be dealt with at the hearing. Mr. Lang submitted that as the other parties had been previously advised of these claims he anticipated he would provide legal submissions and support for the claims at the hearing. The Commission agreed that the Respondents had been advised of these claims but that if the Tribunal considered these to be new claims and the Tribunal wanted submissions on the issue, the Commission could make written submissions on the jurisdictional basis of these claims. Notwithstanding the invitation of the Commission, I am content that this request be dealt with at the hearing.
Dommages généraux : Une ordonnance enjoignant les intimés, conjointement et/ou subsidiairement, d’effectuer une compensation monétaire de $16,880.00, somme que le plaignant a encourue en frais juridiques;
The Complainant’s Position
49In the Notice of Motion the Complainant claimed compensation from the Respondents in the sum of $16,880.00 for legal fees incurred. At the motion Mr. Lang advised that one third of the amount claimed was for the cost of an initial mediation and the balance was related to the pre-referral process at the Commission. During the course of the hearing of the motion, the Complainant asked for an indication, as well, whether the Complainant would be entitled to claim legal fees for the hearing, especially if the Commission decides to withdraw from active participation in the hearing. The Commission had previously advised the Tribunal during the conference call on January 28, 2003 that their withdrawal from active carriage of this matter was a possibility. Mr. Lang also asked the Tribunal to specifically turn its attention to the wider issue of the potential withdrawal of the Commission, a matter that causes Mr. Lang great concern. In support of this submission the complainant relied on Curling v. Torimiro (No. 4) (2000), 2000 CanLII 20870 (ON HRT), 38 C.H.R.R. D/216 (Ont. Bd. Inq.) (“Curling”).
The Respondents’ Position
50MCSS submits that the Tribunal has no jurisdiction to award legal fees in either of the scenarios suggested by the Complainant. This is because the statutory scheme excludes payment of legal fees to a complainant regardless of whether the Commission participates in or withdraws from the proceeding. MCSS submits that subsection 41(4) of the Code sets out the entitlement to costs in a proceeding before the Tribunal, which provides that in the circumstances set out in that subsection only the Commission may be ordered to pay costs to the person complained against. In support of its position MCSS relies on the Ketola v. Value Propane Inc. (No. 2) (2002), 2002 CanLII 46511 (ON HRT), 44 C.H.R.R. D/37 (Ont. Bd.Inq.) (“Ketola”), Ontario (Liquor Control Board) v. Ontario (Human Rights Comm.) (No.1) (1988), 1988 CanLII 8926 (ON HCJDC), 9 C.H.R.R. D/4868 (Ont. Div.Ct.) (“Karumanchiri”) and Khalil v. Ontario College of Art (No. 3) (2000), CHRR Doc. 00-020 (Ont. Div. Ct) (“Khalil”) decisions, which all held that the Tribunal does not have the jurisdiction to award costs to a Complainant.
51MCSS submits therefore that Curling was wrongly decided, but even if that were not the case, the matter before the Tribunal is distinguishable. That was a case where the Respondent made threats against the Commission and both threatened and commenced legal action against the Complainant, which the panel found amounted to reprisal. This, the panel found, reasonably led the Complainant to retain separate counsel and entitled her to compensation.
52Finally, MCSS submits that the amounts are not particularized, and if they relate to the mediation, entered into on a without prejudice and confidential basis, allowing the Complainant to claim the legal fees would alter the without prejudice nature of the mediation and would limit the ability of MCSS to question those fees, because confidentiality of the mediation process must be maintained.
53EEP adopted the submissions of MCSS on this point.
The Commission’s Position
54The Commission agrees with the submissions of MCSS on this point and with the principles of law set out in Khalil and Ketola. The Commission submits that the amounts claimed by the Complainant in either of the two scenarios are not recoverable at the Tribunal. The Commission further submits that it would be premature to determine matters that arise out of a request for withdrawal by the Commission, as that is a matter that does not need to be clarified now.
Analysis and Determination
55Except for Curling, a case based on completely different facts, the authorities cited by the parties are consistent in holding that legal costs of a proceeding before the Tribunal are only available in the circumstances set out in subsection 41(4) of the Code. In the circumstances of this case, I find the reasoning contained in Karumanchiri and Ketola (the ruling on costs in that case currently subject to a cross-appeal brought by the Commission in that matter) persuasive, and the request for an amendment to claim the legal fees set out in the Notice of Motion is denied. I agree with the Commission that addressing matters arising out of its possible withdrawal from active carriage of this matter, or the issue of its withdrawal in general, an event that has not yet occurred, is premature.
Dommages généraux : Une ordonnance enjoignant les intimés, conjointement et/ou subsidiairement, d’effectuer une compensation monétaire de $ 38,058.99 en ce qui concerne les dommages liquidés, c’est à dire dépenses antérieures reliées à la thérapie;
Complainant’s Position
56Mr. Lang submitted that this claim is for past therapeutic expenses incurred to remedy any breach of the Code. He confirmed that the Complainant is not seeking future therapeutic costs.
The Respondents’ Position
57MCSS submits that in the one page statement of expenses that Mr. Lang provided in support of this claim, there are rehabilitation expenses claimed for the years 2001 and 2002, whereas the Complainant was not eligible to attend the Thursday’s Child Nursery School after the summer of 2000. MCSS submits that the oral ruling made on January 28, 2003 provides that information outside the time frame set out in the ruling that is relevant to remedy is admissible, but the oral ruling does not mean that the Complainant would be entitled to claim for therapy for a period of time when the Complainant is ineligible to receive those services.
58EEP adopted the submissions of MCSS on this point.
Commission’s Position
59The Commission submits, that my oral ruling allows for consideration of the issue of remedy outside the time frame set out therein.
Analysis and Determination
60My determination with respect to prejudice is set out above. As set out in my oral ruling dated January 28, 2003, evidence after the time frame set out in that ruling which is relevant to remedy can be led. I am not at this stage prepared to foreclose an argument that past therapeutic costs to remedy any alleged breach of the Code are not recoverable. The amendment is permitted.
Conditions Attached to the Permitted Amendments
61While amendments to the Complaints have been permitted, the Tribunal is concerned that any further delay arising from permitting the amendments be minimized. Accordingly, the parties are to canvass among themselves dates for the provision of any response to the amendments and for disclosure. If those dates cannot be agreed upon by April 4, 2003, I will set them.
62In addition, Mr. Lang must provide a copy of this Interim Decision to counsel in the Civil Action and the Complainant is to take to take whatever steps are necessary to ensure that there will be no double indemnification.
Order
63The Tribunal therefore orders the following:
The Complainant is permitted to amend his Complaints to claim the relief set out at subparagraphs 2(a), 2(b), 2(f) and 2(h) of the Complainant’s Notice of Motion dated January 31, 2003.
The request for relief set out at subparagraphs 2 (c) and 2(d) of the Complainant’s Notice of Motion dated January 31, 2003, shall be addressed at the hearing of this matter.
This Order is subject to the following conditions:
a. That the parties are to canvass among themselves dates for the provision of any response to the permitted amendments and for disclosure. If those dates cannot be agreed upon by April 4, 2003, I will set them.
b. That Mr. Lang must provide a copy of this Interim Decision to counsel in the Civil Action and the Complainant is to take to take whatever steps are necessary to ensure that there will be no double indemnification.
Dated at Toronto this 2nd day of April, 2003.
“Steven J. Faughnan”
Steven J. Faughnan
Vice-Chair